Citation Nr: 1330374 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 10-17 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and an anxiety disorder. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to October 1965 and May 1968 to September 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and an anxiety disorder, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT After resolving all doubt in the Veteran's favor, tinnitus had its onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1121, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to assist and notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting the service connection claim for tinnitus, which represents a full grant of the benefits sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist is harmless and there is no prejudice to the Veteran. Service connection law and regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Background and merits The evidence confirms the Veteran's current diagnosis of tinnitus. See VA Examination Rpts., August 18, 2008 and September 3, 2008. Moreover, military records are consistent with the Veteran's account of exposure to acoustic trauma during service. See U.S. MAC-V summary for February 1969. Accordingly, the determinative issue is whether the current disability is related to military service. Tinnitus is not among the chronic disabilities listed in 38 C.F.R. § 3.309(a), and may not be established based on continuity of symptomatology; however, the claim may be established if it is found that the disability had its onset in or is related to service or an event of service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). On his March 2008 claim for VA compensation benefits, the Veteran stated that he has suffered from ringing in his right ear ever since he returned from Vietnam in 1969. He stated that his hearing was affected by mortar attacks, loud gun fire, and jet engine noise when stationed at Duogua, Vietnam. The Veteran's statements regarding the in-service onset of ringing of the ears are competent because the matter is within lay observation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, there is nothing in the record to contradict his account of when his tinnitus started or otherwise undermine the credibility of his statements. In fact, Vietnam Order of Battle and the U.S. MAC-V summary for February 1969 confirm that the Veteran's unit was rocketed. In addition, the Veteran's September 1969 report of medical history upon separation from service is consistent with his statements regarding ringing in the right ear since Vietnam in the sense that he marked "yes" when asked if he had "ear, nose, and throat" problems. Thus, the Board finds the Veteran's lay statements regarding onset of tinnitus to be credible evidence. See Buchanan v. Nicholson, 452 F.3d at 1335; see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence). On VA examination in August 2008, the Veteran reported hearing loss in his left ear and ringing in his right ear. The examiner diagnosed hearing loss and tinnitus. However, given the asymmetry of the Veteran's symptoms, the examiner recommended an ear, nose, and throat (ENT) examination to make a determination as to the etiology of tinnitus. On VA ENT examination in September 2008, the Veteran reported symptoms of tinnitus. The examiner diagnosed tinnitus. However, she opined that it is impossible to resolve the etiology of the Veteran's tinnitus without resorting to mere speculation, because hearing loss is in the left ear and tinnitus is predominately in the right. This medical opinion has no probative value because it does not weigh in favor or against the Veteran's claim. See Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) (holding that an examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection, and as such, is not pertinent evidence regarding service connection). Moreover, the Board finds that the Veteran's account of tinnitus symptoms during his VA examinations is consistent with his other statements of record saying that the ringing in his ears began since service. Therefore, after resolving all reasonable doubt in the Veteran's favor, the Board finds that tinnitus had its onset in service. The Veteran has a current diagnosis of tinnitus and the competent, credible, and persuasive evidence sufficiently places the onset of this condition in service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. Accordingly, entitlement to service connection is warranted. ORDER Entitlement to service connection for tinnitus is granted. REMAND The Board finds the October 2008 VA examination report with etiology opinion to be inadequate to address the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and an anxiety disorder. In the report, the examiner states that the Veteran's anxiety disorder is not related to his military service, but he provides no rationale for this opinion. As such, the opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). With respect to the issue of PTSD, the Board notes that there is conflicting evidence in the record as to whether or not the Veteran meets the criteria for a diagnosis of PTSD at any time during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The October 2008 VA examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD. However, in 2011, the Veteran submitted evidence from a private medical provider that showed that the Veteran did meet the criteria for a diagnosis of PTSD. Therefore, the Board finds that a new VA examination is required to determine if the Veteran meets the criteria for a diagnosis of PTSD and, if so, if the current PTSD is related to his military service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that the Veteran's anxiety disorder had its onset during active duty service or is otherwise related to service. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that the Veteran has met the criteria for a diagnosis of PTSD at any time during the appeal period. If the Veteran met the criteria for a diagnosis of PTSD at any time during the appeal period, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that the Veteran's PTSD is related to a stressor that occurred during military service. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Then, readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs